I. Introduction

Although it has appeared in the social and
political spotlight more so in the past few decades than it has at
any other point in history, opposition to the use of animals in
scientific experiments – especially those aimed at
facilitating the production of new cosmetic products – is
nothing new. Since at least the 18th century, many
notable philosophers and activists have spoken out for animal
rights and against the use of non-humans for testing of products
whose sole beneficiary is the human race. In 1739, David Hume
recognized that animals were “endow’d with thought and
reason as well as men,” and Immanuel Kant opposed cruelty to
animals not for their sake but rather for man’s, noting
animal abuse’s detrimental effect on humans’
relationships with one another.[1]

Perhaps most famously, Jeremy Bentham supplied many
modern animal rights activists with early philosophical support
when he stated, “[t]he question is not, Can they
reason ? nor Can they talk ? but Can they
suffer ?”[2] The response to this final rhetorical question was,
in the nineteenth century, the enactment of incipient animal
rights’ legislation in Europe[3] and additional formal opposition to animal cruelty
in the United States.[4] And even if many of the writers who followed Bentham
have argued for the discontinuation of animal experimentation in
the field of medicine as well as that of cosmetics,[5] it is the latter – because of its relative
frivolity, or at the very least its lack of absolute necessity
– that has been most successfully criticized and indeed
serves today’s animal rights campaigners with their most
promising avenue towards gaining relief for their non-human
brethren.

A common stumbling block, however, for activists
attempting to follow this path has been the dismissal by more
moderate policy-makers of proposals that, often partly because of
the mere manner in which they are presented, strike them as morally
unconscionable. Without any doubt, a great deal of emotion inheres
in both sides of the argument over the use of animals in scientific
experimentation, and the debate’s viewpoints have
consequently polarized. This is unfortunate. For when advocates in
any setting are led to make unreasonable statements and
arguments[6] out of anger rather than reason, the chance of
success by either side becomes remote. This essay’s goal is
first to survey some of what has recently been asserted – by
philosophers as well as legal codes – about animal testing
and then, more importantly, to analyze the difficulties that have
arisen in this discourse with an eye toward developing a means of
resolving them.

In order to determine the gamut of issues involved
in the debate over animal experimentation, it is helpful first to
examine in brief the reasons that the subject is one so charged
with emotion. Many of the essays on both sides of the issue begin
with stories meant to pull at heart-strings. “We wept and
watched, my wife and I, as a little girl fought for her
life,” begins one account explaining the vitality of animal
testing to life-saving advances in medical science.[7] Other emotionally-effective accounts begin with
stories of dogs dying in their futile attempts to save
children,[8] atrocities involving chimpanzees in scientific
laboratories,[9] and the like. Aside, of course, from providing a
colorful opening to a persuasive essay, such strategies attempt to
win the reader over to the author’s side from the get-go
– before, that is, they introduce any substantive arguments.
And while the immediate effect might be, rhetorically, a strong
one, this paper’s reasoning attempts to reveal its double
edge. That is to say, the truth is that there are equally
disturbing stories to be told by those who support animal testing
and those who oppose it. Neither side suggests – at least
when it is speaking credibly[10] – that adoption of its position would result
in a complete end to suffering.

William Timberlake uses the first paragraph of one
of his essays to espouse an observation somewhat more significant
than a sympathy-evoking story. “Animal suffering,” he
submits in response to the impassioned writings of the outspoken
animal advocate Peter Singer, “has become so emotionally
charged a term that attempts to analyze it critically have been
rejected in favor of immediate action to stop it.”[11] The civil disobedience Timberlake alludes to and
Singer himself describes,[12] however, can hardly be viewed as a reasonable road
toward resolution of any problem. If the majority of the animal
rights movement embraces, as one author notes some activists have,
a “general disillusionment, or even hostility towards science
itself”[13] rather than towards the more narrow target of
unnecessary infliction of pain upon animals, it will have let its
emotions get the better of it – and will likely, given its
relatively small size, suffer the consequence of simply being
silenced by the powers of the status quo .

All of this said, perhaps emotions will always
– and perhaps, to a carefully limited degree, should –
play a role in the debate this paper addresses. Tom Regan provides
the following support for such a proposition:

It is our hearts, not our heads, that call
for an end to it all, that demand of us that we overcome, for
[animals’] sake, the habits and forces behind their
systematic oppression. All great movements, it is written, go
through three stages: ridicule, discussion, adoption. It is the
realization of this third stage, adoption, that requires both our
passion and our discipline, our hearts and our heads.[14]

Perhaps the general principle here, rather than the
one-sided nature of its argument for animal rights, is the
important thing. Read in a neutral way, it instructs those
interested in resolving the animal-experimentation dilemma to keep
at least in the back of their minds not only the compelling
emotional reasons for holding the views they do but also the
equally-valid emotional bases for the ideas of those who oppose
them. Perhaps most importantly, no one involved in this debate
should forget the bridge-burning, door-closing effect that
over-reliance on emotions can cause.

II. The Arguments For and Against Animal
Experimentation

If emotion has established the tone of the ongoing
– and sometimes violent – debate over the use of
animals in scientific experimentation, what represents its
substance? Since people obviously began using animals in
laboratories before they began to articulate arguments against
doing so, perhaps the most logical place to begin in answering this
question is by noting the most fundamental argument in support of
animal testing.

There is little question that animal
experimentation has led to significant advances in medicine, and
that these advances have in turn led more or less directly to the
protection of countless human lives. Treatments such as the enzyme
streptokinase (which dissolves clotted blood in the coronary
arteries of heart attack patients), the vaccination against
poliomyelitis that has turned polio into a near-forgotten American
memory, the surgical replacement of arthritis-crippled
joints,[15] and the life-saving treatment for cystic
fibrosis[16] are just a very few of the great number of drugs
and medical processes that have been made available for human use
only after being tested and perfected on dogs, cats, monkeys, and
other animals.[17] The empirical human value, then, of animal
testing, seems clear enough from examples such as these.

But this statement may not be entirely true. As
much as it can be of use to the development of life-saving
technology, required animal testing can also, potentially, be a
hindrance. One author, for instance, notes that penicillin, one of
the most important medications of the modern world, was used almost
immediately on humans because of limited supply of the drug on the
one hand and its immediate need on the other. “It is
interesting to note,” the authors state, “that much
testing [of penicillin] was done on cell cultures in vitro
...[.] One may wonder if the present regulatory demands would
crumble if a situation were to recur in which such urgency of
therapeutic need was unmistakable.”[18] The implication here – that current
regulations place undue burdens on the availability of drugs to the
public – will be more fully addressed in section three of
this paper. The fundamental point – that effective testing
does not necessarily require the use of live animals – has
been an argument mounted with some force for those who favor
careful testing but oppose the use of living animals.[19]

Perhaps the strongest criticism, however, of animal
experimentation is that the results of many animal tests may be
invalid as applied to humans. Walsh and Pyrich assert this claim by
noting that “[s]ome commentators have argued that the FDA
relies too heavily on animal studies, which are, in fact, of fairly
limited use ... in proving safety and effectiveness in
humans.”[20] To return to the subject of penicillin with the
more formidable weight of this argument, consider the following
statement:

[A] number of drugs used successfully to treat
human beings cause tumors or leukemias in animals. In fact, Sir
Alexander Fleming claimed that the penicillin project was
successful because he never tested the drug in animals. Had he
known of penicillin's animal toxicity, Fleming said that he never
would have tried it on human subjects.[21]

While Laurence et al. note the number of
lives saved because of penicillin’s speedy approval for human
use compared to the imagined result of its delay through lengthy
animal testing,[22] Dillman imagines a scenario even more detrimental
to human life, viz., the non-acceptance of a pivotal drug on the
basis of none other than animal testing itself.

Another commentator on this topic is Mark A.
Kassel, who submits in an essay arguing for reform of the
procedures necessary before new drugs may be put on the market:
“Studies ... show that at least twenty percent of the
positive predictions for toxicity and side effects in animals
proved to be false in human beings."[23] As all of the above-referenced scholars do,
noting the at least potential invalidity – and therefore
irrelevance, or indeed even dangerously misleading nature –
of animal experimentation only opens the door for compelling
criticism. For, as the final section of this essay will argue, even
if the pro-testing contingent is not moved by emotional,
rights-based, or traditional utilitarian arguments against animal
use in scientific experiments, it should at the very least agree
that it is undesirable to waste money and effort on procedures
whose results are invalid.

Another noteworthy observation is that this section
of the essay has, heretofore, considered only arguments pertaining
to the use of animal experimentation aimed at producing new and
more effective, life-saving medicines rather than products
voluntarily used to improve physical appearance. It is no
coincidence that most of the support for animal testing applies to
the medical setting rather than to that of cosmetics,[24] and perhaps also no surprise that animal rights
advocates most often focus their attack on the latter. The main
reason for this phenomenon, as mentioned above, is
readily-apparent: while medicines save lives, cosmetics do not.
This is not to say, of course, that cosmetics are the only
frivolous products (relative, that is, to life-saving medicines)
tested on animals.[25]

Discounting such extreme positions as
Cohen’s, which do more merely to anger those opposed to
animal testing than they do to convince them of the problems with
their position, there is a more viable argument in favor of the use
of animals in the testing of cosmetics and other non-essential
products. This argument, in a nutshell, is protection of human
health[26] – and, as such, is actually the very same
one that applies to the medical field. The only difference, in
fact, is that people in need of new medicines usually have no
choice in the matter, whereas users of cosmetics make a conscious
decision to apply or consume products that could bring them
harm.

Criticism of testing for frivolous ends, not
surprisingly, abounds.[27] Standing alone, such criticism probably does not
do the persuasive work needed in order to convince most of those
who favor animal testing that their position is mistaken. When,
however, the argument is coupled with credible and non-emotional
attacks on the validity of animal tests, it gains (as suggested
above) strength. Baird and Rosenbaum give an example of how the two
elements can be woven together by first noting the pain caused by
the “Lethal Dose-50” (LD-50) test and then giving the
following description of that test:

T[he] LD-50 test requires feeding [test animals] a
sufficient quantity of the product in question to find the dose
that kills 50 percent of [them] .... “Because most cosmetic
products are not especially poisonous, it necessarily follows that
if a rat or a dog has to be killed this way, then very great
quantities of the cosmetic must be forced into their stomachs,
blocking or breaking internal organs, or killing the animal by some
other physical action, rather than by any specific chemical
effect.”[28]

While this statement may at first seem to
constitute an effective argument based on the observation that the
LD-50 test is misplaced in an area of products in which not only
very small quantities of any given substance are intended for use
at one time but also that none of the substances are intended to be
taken internally, the interest in human health could easily be seen
to trump nonetheless. For what, researchers are required to
imagine,[29] would happen if, say, a toddler came across a
bottle of fingernail polish remover and drank its entire
contents?

If reasonable animal rights supporters would
concede that it is an important objective of science and regulatory
schemes to prevent products that can kill people (in however
improbable a manner) from reaching consumers, animal testing of
cosmetics should arguably be thought every bit as important as
animal testing of drugs. But if a combination of the frivolity and
invalidity arguments is ultimately somewhat disappointing in this
instance, what, exactly, is wrong with it? As this essay sees it,
the problem with Baird and Rosenbaum’s statement is once
again over-reliance on emotion, and the strength of arguments such
as those of Dillman, Green, Peskoe, and others[30] is their simplicity – their unemotional,
wholly empirical nature. The preceding paragraph is by no means an
argument that the validity argument should fail. Instead, it is
attempt to delineate that defense’s boundaries – an
important endeavor in this area, where strong arguments may
ultimately fall short of their mark when they are made specious
through the use even of implied, let alone vividly explicit,
emotional pleas.

Focused on discussion of realizing medical
advances, protecting consumers, and proving the validity of tests
on animals, this section’s discourse has up until now taken
place on a mostly practical, rather than theoretical, plane. Yet
many of the arguments concerning animal rights in the area of
scientific experimentation are penned not by legal scholars or
scientists but rather by philosophers. Although the final section
of this essay will view them as mostly irrelevant to the actual
resolution of the problem of animal testing in this country and
others, the following few pages provide a brief sketch of some of
these thinkers’ positions.

Perhaps the most logical theoretical question to
begin with is what people mean when they use the word
“animal.” While Singer sees humans as falling within
this definition, referring to man as the “human
animal,”[31] most writers embrace the more colloquial –
and, arguably, speciesist – definition that views mankind as
standing outside of the “animal” group and within a
category that excludes, indeed, all else. The question such
theorists and this paper wish to address is where the line should
be drawn below which living things should be accorded no right to
avoid being subjected to scientific tests. If most would argue that
man is not below that line, and some would argue that dogs are not
either, would, say, spiders – or amoebas – be?
Addressing this question, Steven Zak asks:

Must we treat dragonflies the same as dolphins?
Surely not. Distinctions must be made, though to judge definitively
which animals must be ruled out as holders of rights may be
impossible even in principle. In legal or moral discourse we are
virtually never able to draw clear lines. This does not mean that
drawing a line anywhere, arbitrarily, is as good as drawing one
anywhere else.[32]

Zak’s answer does not give much in the way of
a practical answer. Richard Ryder, however, offers at least some
assistance in this regard – and indeed represents the most
commonly-held position among animal rights supporters. He states,
simply: “I believe our respect for others should include all
sentients.”[33] The obvious question that follows such a statement
is how anyone could ever determine which animals are capable of
feeling what degree of sensation. This question is, of course, even
less determinable[34] than the one this paragraph opens with, redoubling
the difficulties involved in its own determination.

Whatever it or other people understand
“animals” (or “beasts,” as it calls them)
to include, the Bible has been a starting point for many arguments
involving animal rights: “Modern philosophical debate about
the use of animals in biomedical research,” Smith and Boyd
explain, “has roots in ancient Hebrew and Classical culture.
In the Genesis myths, ... man is given dominion over the animals,
and the opportunity to name each species.”[35] This biblical excerpt is one that some advocates
of animal testing in the distant past relied upon to justify almost
all action against animals in the name of furthering human
welfare.[36] Animals were put on this earth, the argument goes,
for man to make use of in any way he saw fit. While there are
undoubtedly some that might still support this view, most credible
advocates of animal testing adhere at least partially to
Kant’s idea that animal cruelty is injurious to man’s
dignity[37] – in other words, that conscience dictates
responsible treatment of those over which the human race is able to
exercise so great a degree of control.[38] It is this type of reasonable, mainstream
defense that the Associated Medical Schools of New York (AMA)
asserts[39] as well as, assumably, other organizations whose
daily bread and butter is experimentation on animals.

The view directly opposing the AMA’s (which
might be summed up as a necessity argument tacked onto the original
Kantian position) appears a good deal less reasonable to most
people. This less-popular – if, when divorced from emotion,
perfectly rational – view is that every animal has just as
much right to survival as does every human being: “Animal
liberationists do not separate out the human animal. A rat is a pig
is a dog is a boy.”[40] This position is a reaction to a concept known in
the animal rights debate as “speciesism”; the previous
paragraph describes a somewhat watered-down version of it. In its
pure form, speciesism is “the view that species membership
is, in itself , a reason for giving more weight to the
interests of one being than to those of another.”[41] Although Singer mentions that “this
position, properly understood, is virtually never
defended,”[42] J.A. Gray is one writer who advocates it. In an
essay that is, as much as anything else, a rebuttal to
Singer’s The Significance of Animal Suffering , Gray
first draws a distinction “between ethical principals and
moral choices” to conclude that while, in the abstract, it
might be equally reprehensible to inflict unnecessary pain on a
spider as it would be to inflict it on a human being, a type of
biological – that is, innate or instinctual – morality
guides our actions.[43]

Gray then applies his example of this automatic
tendency of a mother’s protection of own child to the context
of animal rights by first noting that the use or non-use of animals
in scientific experiments is a decision that affects who (i.e.,
either test animals or sick people) will suffer and then arguing
that the medical world should follow the mother’s
emotion-based logic to favor protection of its own kind over
another’s. Such is the logic that allows Gray and other
defenders of speciesism to conclude it is “morally right to
carry out ... experiments [on animals].”[44] It is perhaps not surprising that this position is
infrequently defended.

As this paper sees it, the strongest argument for
animal testing comes from the likes of Mary Anne Warren, who bases
her reasoning upon the consideration that animals, unlike humans,
lack the ability to reason and make thoughtful decisions.[45] Rationality is morally relevant, Warren argues,
not because it makes humans somehow better than members of
other species but rather because it “provides greater
possibilities for cooperation and for the nonviolent resolution of
problems.”[46] Her argument is better reasoned – not to
mention more reasonable – than Gray’s: “The
recognition of the moral equality of other persons is the price we
must each pay for their recognition or our moral
equality.”[47]

The crucial argument here is that humans stand
above animals in one important respect: namely, in their ability to
take actions that cause harm in the short run (e.g., performing
painful tests on animals) but produce great benefits in the long
run (e.g., saving human lives). We should not accord animals the
same rights as humans because we cannot work with them to better
the world for us all. Her position is credible partly because it
rejects the unthinking speciesist position, which animals
instinctually apply, for the more thoughtful and caring approach of
a human mind: “Because we cannot reason with most non-human
animals,[48] we cannot always solve the problems which they may
cause without harming them – although we are always obligated
to try.”[49] To argue strict speciesism, in other words, is to
strip human existence of the one thing that might in fact justify
its superiority over that of animals.

If Warren expresses a strong argument for animal
testing, how do those who oppose her respond? Steven Zak notes that
“early animal-protection advocates and groups ... seldom
talked about rights. They condemned cruelty – that is, acts
that produce or reveal bad character.”[50] These types of arguments, such as the one that led
“early nineteenth-century England campaigners against the
popular sport of bull-baiting [to argue] that it ‘fostered
every bad and barbarous principle of our nature,”[51] fall rather quickly into two traps identified
above: Not only would the protest be subject to an analog of
Warren’s implied criticism of Gray’s instinct-based
reasoning, but it could also easily be placed into the same
category of theological thinking that Singer effectively
discredits.[52] Furthermore, this argument, if asserted today in
the animal experimentation debate, would almost certainly be
conceded to those who voice it since no one persuasively argues for
intentional cruelty to animals for nothing more significant than
human entertainment.[53]

If this type of argument is misplaced in the modern
context, what is a more effective one? Zak claims that
“[m]odern activists have abandoned the idea that cruelty is
demeaning to human character (‘virtue thought’) in
favor of the idea that the lives of animals have intrinsic value
(‘rights thought’).”[54] One of the most prominent rights theorists in
the animal experimentation field is Tom Regan. To Regan, the
“fundamental wrong” with any activity that harms
animals is not the pain or suffering it might cause but rather the
mindset of its human perpetrator that it is permissible to view
animals as resources for mankind.[55] This statement is clearly aimed at the Biblical
justification for the use of test animals this section mentioned at
the beginning of its survey of philosophical viewpoints. Regan goes
on to consider and reject the “indirect duty” view that
no animal itself has any rights and that any wrong done against it,
if considered a violation at all, is a violation of its
owner’s right.[56]

Although he supports this right-based position
(“we ... must at least recognize that we have some duties
directly to animals, just as we have some duties directly to each
other”), it is a utilitarian theory that Regan at least seems
to want to embrace.[57] Utilitarianism, as Regan sees it, adheres to two
moral principals: first, that everyone’s interests should be
accorded equal weight, and second, that the best act is that which
brings about “the best balance between satisfaction and
frustration for everyone affected by the outcome.”[58] Regan admits that the dictate of utilitarianism
– “to add up (somehow!) the separate satisfactions and
frustrations of everyone likely to be affected by our choice”
and then to choose the option that generates more total
satisfaction than frustration – is a tall order and indeed
one that is often performed in no single clearest way.[59] Regan tries briefly to rescue his admittedly
indeterminate utilitarian theory, but soon gives up, reverting to
his rights-based position – which in his view requires the
protection of all human and animal beings, regardless of how
“useful” they may be to the aggregate social
welfare.[60] His final position seems to be that every entity
has equal “inherent value,” which should be respected
in an even-handed way across the board.[61] At the end of the day, Regan seems to be claiming
that no one person or animal should ever be harmed for the benefit
of another.[62] Regan’s theory is, then, just that.[63] Little practical advice can be gleaned from it, as
his treatment of utilitarianism proves.

Finally, the topic of animal use for food by both
humans and other animals has made its way into the philosophical
debate. Human consumption of animals, to begin with, has been
criticized for at least two hundred years. Peter Singer explains
that “William Paley, a progressive moral theologian of the
late eighteenth century .... wrote that the practice of killing
animals to eat them caused them pain and death for our pleasure and
convenience; moreover, eating meat was unnecessary, since we could
live on fruits and vegetables, as the Hindus do.”[64] Currently, most animal rights advocates recognize
that the worldwide meat industry causes not only great pain and
suffering but also large-scale environmental destruction.
Consequently, many such advocates do not themselves consume animal
products. But what about those that do? Despite Cohen’s
assertion that “[o]ne cannot coherently object to the killing
of animals in biomedical investigations while continuing to eat
them,”[65] this paper submits that such a statement is simply
irrational. For while an animal rights advocate who eats animal
products might be rightly called a hypocrite, his personal habits
should not affect the coherence – and certainly not the
validity – of his arguments. Would anyone, to illustrate,
attempt to refute the arguments of a lawyer representing a consumer
group against a tobacco manufacturer on the grounds that she is a
smoker? Incoherence between act and assertion – is and
ought – is no grounds, at least in this instance, for
the dismissal of a potentially valid position.

The second, related topic – animal
consumption of other animals – allows those who disfavor
animal rights to mount another, somewhat more persuasive, argument.
Timberlake sums it up by asking his readers to

[c]onsider the incompatibility of the following
beliefs [esposed by Peter Singer and other animal rights
supporters]: (1) All animals (including humans) are equal in moral
status; (2) all animals except humans can promote the survival of
their own kind at the expense of the suffering and restricted
access to resources of other species.[66]

The case for inconsistency here is much stronger
than the one asserted by Cohen in the preceding paragraph. It is
indeed a troubled argument, asserting equality among humans and
animals and then immediately attempting to hold humans to a higher
standard. The difference, this essay submits, is that no animal
causes the degree of destruction that humans do. To hunt for food
necessary for survival is one thing; to clear-cut forests for real
estate developments or cattle pastures so that people may have
spacious back-yards and plenty of steaks in their grocery store
freezers is somewhat of another. Most animals take what they need,
and no more. Humans often take all that they can get, regardless of
what effect doing so might have on animals and the environment. The
important statement, then, is the one Warren asserts: rationality,
the ability to reason and make thoughtful decisions, distinguishes
us from animals. [67] As humans, we possess a great power that animals
lack. We could be viewed as owing it to ourselves and the world to
make choices that reflect that difference.

The preceding paragraphs have attempted to present
(albeit it in an admittedly cursory fashion) some of the most
prominent philosophical arguments surrounding the use of animals in
scientific experiments. Although most of these arguments are
applied to medical tests rather than to those performed in the
field of cosmetics, it is important to keep in mind that it is the
latter, arguably less justifiable field, rather than the former on
which this essay focuses directly. The following section will
consider what types of laws have been instituted in this country
and others regarding animal experimentation in the cosmetic
industry itself. The final section will return to, and modify, some
of the arguments discussed in the present section in a way that
hopes to synthesize the essay’s four parts and at least begin
to formulate a way of solving this heated and long-lived
debate.

III. Current Laws Addressing Animal
Experimentation

One document this essay has already mentioned in
footnotes more than once – the Commission of the European
Communities’s Annual Report from 1994 concerning animal
testing (the “Report,” hereinafter)[68] – and the proposed legislation it engendered
will serve as this section’s initial focus. The Report is
especially significant to this paper not only because it provides a
good overview of both European and other countries’
approaches to the debate over animal experimentation in the
specific area of cosmetics[69] but also because it evidences the success one
group of animal rights activists almost realized in establishing
protection for laboratory animals.

The Report begins, as noted above, by delineating
the foremost goals involved with regulation of the European
Community cosmetic market, including the role it plays in that
endeavor. The balance to be struck, the Report declares, is between
“assur[ing] a better level of quality and safety of products
and their ingredients and hence a better level of consumer health
protection” on the one hand and “avoid[ing,] ...
wherever possible, ... the suffering and death of
animals”[70] on the other. While the Report concedes that the
former goal should remain the first and foremost concern, the
latter is the very reason for the Report’s own existence. The
Report, then, is aimed at assessing means of “offer[ing] the
consumer a degree of protection equivalent to that obtained by
animal experiments” without experimenting on sentient
animals. Its practical objective was to offer proof to the European
Parliament that animal testing of cosmetic products could be
prohibited without untoward effect on consumers.[71]

The first alternative to animal testing the Report
considers is testing by way of in vitro methods, which
“include sample biological systems in the form of bacteria,
cultures of cells or animal or human tissues, organotypical
cultures or systems using artificial media (reconstructed skin) ...
or physical and chemical tests (alkaline-acid reserve,
etc.).”[72] While the Report notes that in vitro
toxicity tests are often “incomplete by comparison with the
effects observed in vivo ,”[73] and that to gain legal acceptance any such test
would need to be subjected to years of study to ensure – by
“consensus within the scientific community of the 25 Member
States”[74] – its validity, the Report nonetheless
suggests that in vitro methods may present viable options
for at least some tests. Examples of in vitro tests that
have been “validated” by the European scientific
community include photoirritation and phototoxicity,[75] and, to a less-definitive degree, an in
vitro eye irritation test that would replace the
much-criticized in vivo Draize procedure.[76] Aside from these two tests, the Report claims that
one other – percutaneous absorption – is in the
“prevalidation” stage[77] and that three more – skin sensitization,
acute toxicity, and skin irritation – are in the
“development” stage.[78]

The conclusion of the Report, then, is not an
especially positive one for those who would have liked to see the
use of animals in cosmetic product testing abolished by 1998.
Indeed, after having postponed it more than once, the European
Parliament quite recently pushed this abolition date back again,
noting that sufficient alternative methods to in vivo tests
had still not been realized.[79] The 1994 Report lists some reasons why its efforts
failed. First and foremost, it recognizes that “[v]alidation
studies are costly and time-consuming.”[80] Apparently, the support provided by a variety of
countries and organizations[81] has simply not been sufficient, given the high
standards necessary to ensure consumer protection.[82] In its concluding pages, the Report states:

The results obtained in the development and
validation of batteries of in vitro eye irritation tests
concern specific chemical families and certain groups of finished
products[. T]here is no conclusive evidence that these results can
be extrapolated to the evaluation of ingredients belonging to
different structural classes and functional groups, notably to the
ingredients likely to be included in the positive lists, viz.,
preservatives, colouring agents and UV filters (hair
dyes).[83]

But even if in vitro tests have not been
accepted by the scientific community as viable alternatives to
testing on live animals, the Report does support with somewhat more
optimism methods that “contribute to reducing the number of
test animals and the sufferings inflicted on them.”[84] At least a step in the right direction as far as
animal rights goes, this partial remedy applies to the fixed dose
method,[85] the acute toxic class method,[86] the skin sensitization test,[87] and mutagenicity / genotoxicity testing.[88]

The final section of the Report, “The
Outlook,” claims that in vitro alternatives are just
around the corner in the area of tests for eye irritation,
percutaneous absorption, basic mutagenicity, and phototoxicity /
photoirritation.[89] However, while the Report notes that such tests
might soon be countenanced by the scientific community, it also
states that “their legal acceptance cannot be assured until
the difficulties and unknowns in the validation and evaluation
exercises referred to earlier on have been removed.”[90] The Report ends by calling for: (1) more research
as to whether “studies currently being developed and
validated can be applied to a greater number of different
substances,” (2) selection of “a group of substances
whose in vivo toxicity data are pertinent to an in
vitro / in vivo correlation exercise” (assumably
to avoid the need to repeat in vivo tests whose results are
known), and (3) optimization of “databases of tests and
implement[ation of] an adequate and coordinated system for
providing information by creating a cosmetic products
database.”[91] Currently, in vivo animal testing continues
in Europe, if to a somewhat lesser degree, in the same way it has
for many years.[92]

Unfortunately for animal rights activists in this
country, the American outlook is not even as hopeful as
Europe’s. “The Food and Drug Administration,” the
Report claims, “encourages the development of alternative
methods but ... concludes that it is unlikely that animal tests can
be completely dispensed with in the near future.”[93] While the first attempt at legal protection of
animals used for scientific experiments came in 1896 with Minnesota
Republican Representative James McMillan’s proposal of a
Congressional bill “to regulate vivisection in the District
of Columbia,” the bill did not pass and indeed the following
century witnessed a large – and largely unchecked –
increase in animal experimentation.[94] Finally, in 1966, some progress for animals was
made. In that year, Democratic Representative Joseph Y. Resnick
convinced Congress to pass the Cats and Dogs Act, whose three
objectives were “(1) to protect the owners of dogs and cats
from the theft of such pets; (2) to prevent the sale or use of
stolen dogs or cats for the purpose of research or experimentation;
and (3) to establish humane standards for the treatment of dogs,
cats, monkeys (non-human primates), guinea pigs, hamsters, and
rabbits by animal dealers and medical research
facilities.”[95]

These first two objectives – the ones,
indeed, most central to the Act – protected animal owners
more than they protected animals themselves. This should not come
as much of a surprise, given that the impetus behind the passage of
the 1966 Act was the retention of an owner’s lost dog by an
arrogant New York dog dealer over the owner’s adamant
objection.[96] Indeed, for those who take a dim view of
animals’ intrinsic rights, a property interest in animals is
one – and perhaps the only – way that legal protection
can be, albeit indirectly, extended to them.[97] It makes sense, then, given the evolution of
thought on the subject, that it is under this conceptual framework
that animal-protection legislation began.[98] There remains, of course, the Act’s third
objective, which directs the U.S. Secretary of Agriculture
“to promulgate regulations to ensure the humane handling,
care, treatment, and transportation of animals by dealers and
research facilities, except during actual research of
experimentation as determined by the research
facility.”[99] It is the final clause of this statement that is
most important: While the 1966 Act requires that animals be
moved about in a considerate way, it nullifies their rights
when they actually reach the laboratory.

Four years later, the Cats and Dogs Act was amended
and renamed the Animal Welfare Act (AWA) of 1970. This 1970 version
expanded the range of people responsible for transporting,
handling, &c. animals in a humane manner to those who ran
“carnivals, road shows, circuses, and zoos,” and, for
whatever reason, also extended the term “animal” to
include both living and dead members of the species listed in the
1966 Act.[100] Most importantly for purposes of this paper, the
1970 Act required “each research facility [to] show that
professionally acceptable standards governing the care, treatment,
and use of animals during actual research or experimentation are
being followed, including the appropriate use of anesthetic,
analgesic, and tranquilizing drugs.”[101] This provision marked the first
legally-documented concern in this country about the unpleasant
effects of in vivo testing on animals. In 1976, the AWA was
amended once again to broaden the scope of animal-handling people
and entities covered and to prohibit animal fighting or the raising
of animals for the purposes of fighting. It failed, however, to
tighten experimentation restrictions.[102]

Yet another amendment to the AWA – this one
“Subtitle F: Animal Welfare” of the Food Security Act
of 1985 – provides that dogs and primates confined in
laboratories be given the opportunity to exercise in an adequate
physical environment.[103] Additionally, the 1985 Act mandates that
“[d]uring actual experimentation, animal care, treatment, and
practices should ensure that animal pain and distress are
minimized, including [sic] adequate veterinary care with
appropriate use of anesthetic, analgesic, tranquilizing drugs, and
euthanasia.”[104] Furthermore, the 1985 Act moves markedly beyond
its predecessors by “direct[ing] the principal investigator
... to consider alternatives to any procedures that are likely to
cause pain or distress.”[105] While this was an important step toward animal
rights for American legislation, it still falls short of the
European Community’s efforts. That is to say, while the 1985
Act requires the principal investigator to “consider”
alternative methods (a potential illusory promise), the Report
proves that many European companies – as well as some U.S.
organizations[106] that have joined Europe in its effort to end
animal testing in the cosmetic industry – are contributing in
more tangible ways to the development of in vitro and other
alternatives.[107]

One major difference between efforts to reduce
in vivo animal testing in the United States and those in
Europe is the latter’s stated commitment to expending
substantial sums of money on investigation of the viability of
painless tests: “The European industry devoted ECU 25 million
during 1993 to meet the challenge presented by the sixth amendment
to the Cosmetics Directive. It played a major role in the research
and development of in vitro methods which made it possible
to reduce or avoid the use of animals.”[108] It is important that, though spurred by
legislation, industry participants – and not merely European
governments – are taking an active role in the development of
alternative testing procedures. To note this, however, is of course
not necessarily to say that European industry acts as it does out
of some sense of moral obligation. For while some CEOs both here
and abroad might sympathize with the cause of animal rights, it is
their primary obligation (at least in this country) to act in ways
that maximize the profits of their corporations. European industry
acted as it did, we must assume, in order to stay in business.
Faced with the threat of such pro-animal legislation, there was
little it could do but take a proactive monetary hit to ensure
future survival. This essay’s final section will further
explore the implications of such simple economic truths.

The current state of the law in Europe, however,
remains that in vivo animal testing – even for
cosmetic products – is still requisite to consumer
protection. In America such testing is even more ensconced: the FDA
effectively requires it for all new products,[109] and animal protection statutes such as those
surveyed in this section offer only minimal protection for
laboratory animals. The current outlook, at least based upon the
animal rights activists’ positions described in section two
of this essay, is bleak for both animal test subjects and their
human advocates. However, the following section will propose a
critical rethinking of the issue and, potentially, a way to
brighten the prospects for these long-ignored groups.

IV. Conclusion and Proposal

To summarize by analogy, the conclusions of both
the Report and current U.S. legislation state an implicit claim
that is somewhat akin to one from the modern-day automobile
industry, viz., that while new technologies to replace the
environmentally-destructive internal combustion engine seem just
barely out of reach, there is still a lot of work that needs to be
done – and a great deal of money spent – before such
new technology’s development and implementation can be
realized. The two scenarios are similar in other ways as well:
today’s automobile engine, like traditional in vivo
animal testing, has been around since the days of Ford and Bentham,
respectively, is broadly recognized as undesirable, will require
time and money to replace, and is surrounded by an aura of
untouchability since so many people – naturally resistant to
change – have come to rely quite comfortably upon it. Perhaps
in both industries, a significant question may be just how much the
penultimate similarity listed, as compared to the final one, is
checking progress.

But even if readers of this paper conclude that
most people are either too complacent or simply do not care about
animal suffering enough to question their cosmetic purchases, there
remains the question – merely assumed by many animal rights
theorists – of whether we should care about the
suffering that goes on in laboratories. Such writers as
Regan[110] and Singer[111] – and even less extreme animal rights
advocates such as Kress[112] – do not genuinely consider the idea that
they might be entirely wrong, that animals should in fact be
accorded no rights and that humans are justified in performing any
and all tests on them no matter how frivolous or trivial the end
product or result may be. Yet intelligent (if extreme) thinkers on
the other side of the debate, like Cohen, maintain this very
opinion. Having made such an observation, and acknowledging that
the issue will almost certainly never be resolved on a
philosophical level (for what debate ever is?), might it make sense
for animal rights supporters simply to concede that their most
adamant counterparts could in fact be correct? Animals, arguably,
should be accorded no rights at all, at least when such rights bump
up against even the slightest of human interests.

If animal advocates did allow this concession,
would they not be giving up their single most powerful argument
– the very one, indeed, that has succeeded in forcing both
regulatory agencies and research institutions the world over, in
the field of cosmetics as well as medicine, to rethink their
positions regarding the use of animals in scientific
experimentation? If this argument is taken away from the laboratory
animals it has partially protected, what possible method of
persuasion could remain for them? The answer is a simple but strong
one: economics. There are three economic reasons that traditional
in vivo animal testing should be replaced by alternative
methods: In vivo tests (1) are, in and of themselves, quite
expensive; (2) require a great deal of time to complete; and (3)
often do not produce results that are valid as applied to humans.
This proposal, then, is one based not on the utilitarian model that
Regan and other animal rights supporters assert,[113] but rather on economic utilitarianism focused on
companies rather than animals.

The first, most directly economic, point is
documented not only by recommendations to governing bodies[114] but also, somewhat surprisingly, by one of
animal-testing’s most vehement supporters. Cohen writes:

For the investigator, the use of animals as
subjects is often more expensive, in money and time, than the use
of human subjects. Access to suitable human subjects is often quick
and convenient, whereas access to appropriate animal subjects may
be awkward, costly, and burdened with rep tape.
Physician-investigators have often had more experience working with
human beings and know precisely where the needed pool of subjects
is to be found and how they may be enlisted. Animals, and the
procedures for their use, are often less familiar to these
investigators. Moreover, the use of animals in place of humans is
now more likely to be the target of zealous protests from
without.[115]

What, one might ask, is Carl Cohen doing making
statements such as these? Although he intends them to provide
support for his somewhat convoluted argument about why animal
testing should be increased , rather than
decreased,[116] they in fact do more for the opposite
proposition. Perhaps one problem with Cohen’s reasoning is
that he sees only two options: experimentation on animals or
experimentation on humans. The development of alternative in
vitro and computer-model methods of testing cosmetic products
for safety is a third option which, though it may be costly at its
inception, would eventually be cheaper than both animal and human
testing and would eliminate the moral issues that both Cohen and
his opponents raise.

The second point, also supported by Cohen’s
statement, is based on the cliché that “time is
money,” an unavoidable reality in the manufacturing industry.
In the production of new medications and drugs, postponing the date
at which a product is available for sale causes the manufacturer to
lose the money he might have made had it been placed on the shelf
earlier. This concept is simple and intuitive. However, it does not
fully encapsulate the monetary losses a manufacturer would
experience as a direct result of a time delay. Every day of the
testing process means one day more of wages paid to laboratory
employees, animal housing and care costs, &c. The economic
incentive – which Cohen is distressed to discover leads
manufactures to favor the quicker and less expensive method of
human testing by physicians in the field – favors seeking out
ways to avoid such costs. Once again, in vitro alternatives
would do just that and would provide the safer products Cohen wants
to see made available to the human consumer.[117]

The final point has been stated above: namely, that
while the results of in vivo tests in animals often
correlate fairly closely with those of tests in human populations,
there are many instances in which they do not. While it may be true
that many in vitro tests will take a great while to develop,
and in the meantime researchers will have to get by, in order to
protect consumers, with wasteful and perhaps even misleading data
from in vivo test procedures, the day will come (as long as
there is sufficient money to fund such needed progress) when
alternative testing methods will be perfected and animals will be
relieved of onerous and unwilling duties in the scientific
laboratory.[118] The fundamental economic argument here is one of
waste-prevention:[119] it is illogical to spend money on tests whose
results are unreliable, especially if they lead a company to market
a product whose detriment to human – as opposed to animal
– health results in a suit for damages filed by an injured
person. It simply does not make economic sense to continue spending
money on illusory protection, unless of course such illusory
protection is a regulatory prerequisite to allowing the product to
be sold to humans. And if this is true, animal rights advocates
should focus at least part of their efforts on convincing the
regulators of the safety problems with the tests – and
hopefully also of the benefits, in terms of both validity and cost,
of alternative methods.

This paper does not argue, as the opening
paragraphs of this section may seem to suggest, that animals should
be seen as devoid of rights. On the contrary, it is filled with
strong arguments pointing the other way. Its final assertion,
however, is that those seeking to secure protection for animals in
cosmetic laboratories should not allow themselves to become
entangled in the emotional side of this old and ongoing debate. To
do so invites an ultimately inconclusory, and perhaps violent,
discourse. While animal advocates should continue to uphold
whatever emotion-based views they feel are correct, if they are
interested in tangible change they should follow the advice of the
Commission of the European Communities’s Annual Report and
not only encourage legislation that will force industry to
eliminate in vivo testing through alternative methods but
also seek to demonstrate just how much money could be saved in the
long run if, even absent legislation compelling them to do so,
cosmetics manufacturers would invest now[120] in developing in vitro and other
alternative means of testing their products that require less time
than traditional in vivo tests and, most importantly, fewer
dollars and cents.

[1]SeeJANE A. SMITH &
KENNETH M. BOYD , LIVES IN THE BALANCE:
THE ETHICS OF USING ANIMALS IN BIOMEDICAL RESEARCH 300
(1991). Kant’s statement was: “He who is cruel to
animals becomes hard also in his dealings with men.”
Id .

[3]SeeCLIFFORD J.
SHERRY , ANIMAL RIGHTS 73 (1994)
(noting that “the British were the first to attempt to
regulate painful research [on animals] with the passage of the
Cruelty to Animals Act of 1876.”).

[4]Seeid . at 47-54. Sherry explains that
two important organizations – the American Society for the
Prevention of Cruelty to Animals and the American Humane
Association – were founded in this country in the mid-1800s.
Sherry goes on to mention that many more radical organizations,
begun in the 1970s and 80s, were aimed specifically at combating
the use of animals in research, teaching, and the testing of
products. Id . at 53-54.

[5]See, e.g. , Tom Regan, The Case for Animal
Testing , in IN DEFENSE OF ANIMALS
13 (Peter Singer ed., 1985) (arguing that true animal rights
activists must not only support the total abolition of the use of
animals in all of science, but also seek to eliminate
commercial animal agriculture and sport hunting). But see
Robert Wright, Are Animals People Too?,THE NEW REPUBLIC, Mar. 12, 1990, at 23 (claiming
that animal rights advocates can coherently support and rely upon
socially valuable uses of animal testing).

[6] Carl Cohen, for example, in an article criticized
even by those who share his pro-testing views, argues that the use
of animal testing should be increased rather than decreased,
providing a questionable argument in support of this proposition.
See Carl Cohen, The Case for the Use of Animals in
Biomedical Research , 315 NEW ENG. J.
MED. 865, 867 (1986). See also Edwin Converse
Hettinger, The Responsible Use of Animals in Biomedical
Research , BETWEEN THE SPECIES ,
Summer 1989, at 129 (1989) (attacking Cohen’s extreme
position). For an equally inappropriate, anger-invoking essay
advocating the other side of the argument, see Peter Singer,
To Do or Not to Do? , HASTINGS CENTER
REPORT, Nov.-Dec. 1989, at42-43
(fabricating an emotional story about experimentation on mentally
retarded people but only disclosing its falsity midway through the
essay). See alsoROD PREECE & LORNA
CHAMBERLAIN, ANIMAL WELFARE & HUMAN VALUES 45 (noting
the counterproductive effect of each polarized viewpoint’s
distortion of facts regarding animal use in science).

[19]See, e.g. , TheCommission of the
European Communities’s Annual Report: Development, Validation
and Legal Acceptance of Alternative Methods to Animal
Experiments , COM/94/0606/FIN 4 (1994). Cf . Smith and
Boyd, supra note 1, at 40-41, who note that “[n]ot
every addition to scientific knowledge ... is sufficiently
significant to justify the use (let alone every use) of
animals” and therefore have developed a three-part test for
determining when use of living animals in scientific testing is
justified.

[21] John Patrick Dillman, Note, Prescription Drug
Approval and Terminal Diseases: Desperate Times Require Desperate
Measures , 44 VAND. L. REV . 925,
938-939 (1991). SeealsoD.
GREEN , MEDICINES IN THE
MARKETPLACE 41 (1987) (noting that animal tests may produce
dubious data since different species metabolize substances in
different ways); R. LANDAU ,
REGULATING NEW DRUGS 40 (1973)
(asserting that animal experiments are notably unreliable
predictors of how drugs will affect higher functions such as those
of the central nervous system and noting that some medications that
produce significant side effects in humans do not produce any such
side effects in animals); Peskoe, The New Drug Approval
Process--Changes and Impacts , 41 FOOD
DRUG COSM. L.J. 195, 195-96 (1986) (claiming that animal
models provide virtually no guidance in predicting how drugs will
interact with one another in the human body); W. WARDELL & L. LASAGNA , REGULATION AND DRUG DEVELOPMENT 138 (1975) (stating
that animal experimentation, in a study of multiple medications
tested in dogs, rats, and men, failed to make known more than fifty
percent of the drugs’ toxic effects in humans).

[24]But see Cohen, supra note 6, at
103-104 (arguing that, since animals have no rights whatsoever and
lack the capacity for moral judgment, even slight benefits to man
justify any amount of animal suffering).

[25] If it considered them in a more in-depth manner,
this essay would view countless other products – such as
laundry detergents, pesticides, and food color additives – as
open to the exact same type of attack, addressed in this paragraph,
that has been focused against cosmetic products. Rather than
discuss each of them individually, however, this paper implicitly
groups all such “frivolous” products together; the
arguments against animal testing for cosmetics parallel those
against other similar, non-essential products. One final point in
this regard is that while the strength of these arguments lessens
as against testing of non-prescription (and, therefore, also
non-life-saving) drugs since such products undoubtedly assist
humans in meaningful ways, this essay would still assert them but
– most importantly – would allow them to be trumped by
the more forceful weight of the economic argument asserted in
section four. As the observation about penicillin, supra
note 21, implies, this final argument ultimately applies to testing
procedures involving cosmetics as well as drugs (whether they must
be obtained by prescription or not) and thus renders their
life-saving or mere pain-relieving, &c. property
irrelevant.

[26]SeeThe Commission of the European
Communities’ Annual Report , supra note 19, at 2,
which sums up the primary purpose of the European Community’s
cosmetic safety statute as follows: “A cosmetic product put
on the market within the Community must not cause damage to
human health when applied under normal or reasonably
foreseeable conditions of use, taking account, in particular, of
the product’s presentation, its labeling, any instructions
for its use and disposal as well as any other indication or
information provided by the manufacturer or his authorized agent or
by any other person responsible for placing the product on the
Community market” (emphasis added).

[27]See, e.g. , Wright, supra note 5
(distinguished between frivolous and non-frivolous uses of animal
resources); Dillman, supra note 21, at 946 (discounting as
frivolous animal tests aimed at predicting future potential risks
for patients who do not have more than a few months to live); Jack
M. Kress, Xenotransplatation: Ethics and Economics , 53
FOOD & DRUG L.J . 353, 366 (1998)
(asserting that “opposing the abuse of animals for the sake
of selling a new cosmetic” is a “relatively easy
position.” ).

[32]See Zak, supra note 9, at 29. See
also Mary Anne Warren, Difficulties with the Strong Animal
Rights Position , BETWEEN THE
SPECIES , Fall 1987, at 165 (stating that “[i]t would
surely be arbitrary to draw ... a sharp line between normal, mature
mammals and all other living things” and offering the
following reductio ad absurdum, id. at 173: “Why not
extend this line of argument and speak of the rights of trees,
mountains, oceans, or anything else which we may wish to see
protected from destruction?”).

[33] Richard Ryder, Speciesism , in VICTIMS OF SCIENCE: THE USE OF ANIMALS IN RESEARCH 14
(1983) . See alsoPETER
SINGER , ANIMAL LIBERATION 3
(1975).

[34]But see Hettinger, supra note 6, at
127 (implying that it is indeed possible to determine degrees of
sentience, and noting in fact that less-developed organisms will
sometimes feel more, rather than less, pain as compared to
more-developed organisms).

[36] After noting that Descartes “supported this
view by pronouncing animals to be machines without minds or
souls,” Julian McAllister Groves goes on to submit that such
a view, based on biblical justification, was prevalent in
seventeenth-century England: “[P]eople began to believe that
animals benefit from and even enjoy sacrificing themselves for
humans.” JULIAN MCALLISTER GROVES,
HEARTS AND MINDS: THE CONTROVERSY OVER LABORATORY ANIMALS 32
(1997). See alsoHELENA SILVERSTEIN,
UNLEASHING RIGHTS: LAW, MEANING, AND THE ANIMAL RIGHTS
MOVEMENT 39 (1996) (adding St. Augustine and St. Thomas
Aquinas to the list of those who relied upon biblical arguments
favoring the unfettered utilization of animals). But see
Kress, supra note 27, at 367 (claiming that “[b]oth
Judeo-Christian teaching and Greek philosophy agreed that cruelty
to animals was wicked in itself, and furthermore was demeaning to
humans.”).

[38] Expressing, uncharacteristically, a fairly
well-accepted modern view, Peter Singer eschews consideration of
religious arguments shortly after he acknowledges them in one of
his essays: “I am putting aside ... theological questions,
partly because there is no rational foundation for the premises on
which they are based, and also because if we are considering public
policy in a pluralistic society, we should not take a particular
religious outlook as the basis for our laws.” Singer,
supra note 31.

[39] In a pro-testing position statement for this
organization, David H. Schwarz explains: “AMS fully
acknowledges that, along with the responsibility to fulfill our
research role is the need for stewardship on behalf of those
animals which are so vital to this work. All institutions
conducting research must enforce appropriate standards for the care
and use of laboratory animals. Research centers are currently
subject to extensive laws, policies, guidelines and accreditation
standards dealing with the use of animals in research .... Our
disagreement is not with advocates of appropriate and respectful
use of animals in a manner consistent with established guidelines
for animal welfare, but with extremists who insist that no
circumstances exist under which we can morally differentiate
between the worth of the life of a human being and that of an
animal.” Letter to the Editor, 244 SCIENCE 1128 (1989).

[43]See J.A. Gray, In Defense of
Speciesism , BEHAVIORAL AND BRAIN
SCIENCES, Mar. 1980, at 22-23. The hypothetical Gray uses to
illustrate his point is that of a mother who is faced with the
dilemma “of saving one of two small children from a fire,
knowing that the other will die.” Only one of the children is
her own. While the original choice (the mother saves her own child)
is as morally acceptable as any to Gray, when the author changes
the conditions, viz., “[t]he mother’s own child is
crippled, mentally handicapped, or shows dangerous psychotic
tendencies, whereas the other is healthy and normal,” he
reasons that “a point would come at which the imbalance
between the two children ... would outweigh the initial bias in
favor of the mother’s own child.” Gray qualifies this
somewhat nebulous remark with the assertion that “few would
find it morally unacceptable if the required degree of imbalance
turned out to be rather large, as I imagine it would in most real
cases.” Id . at 22.

[44]Id . at 23. See also Cohen,
supra note 6, at 68, who declares that he is a speciesist
and, therefore, would likely support Gray’s conclusions
whole-heartedly.

[48] To illustrate this proposition, Warren quotes from
Bonnie Steinbock, Speciesism and the Idea of Equality , 53
PHILOSOPHY 253 (1978) (stating that
“[i]f rats invade our houses ... we cannot reason with them,
hoping to persuade them of the injustice they do us. We can only
attempt to get rid of them.”).

[54]See Zak, supra note 6, at 70. See
also Warren, supra note 32, at 173 (claiming that
current theorists in many areas, only one of them being animal
testing, have chosen to rely on rights arguments).

[56]Id . at 14-16. Regan’s means of
refuting the “indirect duty” argument is by noting that
animals feel pain and thus can be directly and personally harmed,
and by asserting that protecting only those members of the hegemony
who are permitted to have a say in how they are treated would
result in unpunishable crimes not only against animals but indeed
against any human being who is a member of a minority group that
has effectively been silenced through social, economic, or
political means.

[57]Id . at 18. See also Zak,
supra note 6, at 71, who likewise seeks to unify the
arguments: “Even true utilitarianism in incomplete without
taking account of rights.”

[59]Id . at 19. Regan illustrates
utilitarianism’s potentially drastic results with a
hypothetical in which he has his cantankerous but healthy
“Aunt Bea” killed so that he can use the resulting
inheritance money to make a donation to a local childrens’
hospital. Id .

[65] Cohen, supra note 6, at 68 (stating further
that “[s]crupulous vegetarianism, in matters of food,
clothing, shelter, commerce, and recreation, and in all other
spheres, is the only fully coherent position the critic may
adopt.” Id .

[69]Id. The Report notes that “cosmetic
products covers a very wide range of products, including: classical
make-up products[,] perfumes[,] products for use on the hair[,]
hygiene and toilet products (including soap, toothpaste[,]
pre-shave and after-shave products)[,] ‘natural’
cosmetic products[,] and various products which protect the skin or
mucous membrane and keep them in good condition, such as sun
creams, certain anti-dandruff shampoos, wart removers, moisteners,
deodorants, cariostatic toothpastes, etc.” Id . at
10.

[70]Id . at 2. Two pages later, the Report
identifies the “three-point plan” first proposed by
W.M.S. Russel and R.L. Birch in their 1959 book THE PRINCIPALS OF HUMANE EXPERIMENTAL TECHNIQUE ,
namely, the now well-known “three r’s”:
“(1) reducing the number of animals used[;] (2) refining
existing protocols, so as to reduce animal suffering[; and] (3)
replacing tests on animals.” Id . at 4, 11.

[71]Id . at 2-3. The Report provides, however,
that “[i]f there has been insufficient progress in developing
satisfactory methods to replace animal testing, and in particular
those cases where alternative methods of testing, despite all
reasonable endeavors, have not been scientifically validated as
offering an equivalent level of protection for the consumer ... the
Commission shall, by 1 January 1997, submit draft measures to
postpone the date of implementation of this provision, for a
sufficient period, and in any case for no less than two years....
Before submitting such measures, the Commission will consult the
Scientific Committee on Cosmetology.” Id . at 3.

[72]Id . at 4. As opposed to in vitro
methods, standard animals tests are in vivo (i.e., performed
on live animals). The Report later goes on to list and describe
commonly-used in vivo test procedures. Id . at
7-9.

[75]Id . at 15 (noting also that
“[c]orrelation with in vivo data in the literature
(man/animal) is excellent.”).

[76]Id . at 15-16. The Report qualifies the eye
irritation test’s “validation” status by noting:
“Although sampling is not enough to cover the entire cosmetic
universe, ... the study should cast light on certain classes of
products.” Id . at 16.

[77]Id . at 15. Despite percutaneous
absorption’s prevalidation status, the Report seems
optimistic about its at least partial eventual success: “The
method ... has been validated through reproducible intra- and
interlaboratory results showing a good in vitro / in
vivo correlation for several substances. It can replace in
vivo cutaneous penetration tests but tells us nothing about the
metabolism and toxicokinetics.” Id .

[78]Id . at 16. The prognosis for these tests is
dim: “In view of the current state of research, and the
difficulty of validation exercises, in vitro methods cannot
yet replace tests on live animals.” Id .

[79]SeeCommission Directiveof 17
April 1997 , 97/18/EC 1 (“postponing the date after which
animal tests are prohibited for ingredients or combinations of
ingredients of cosmetic products.”).

[80] Report, supra note 19, at 16. The report
provides the following reason for this statement, implying that
test methods must be repeated by many more laboratories than the
ones that developed them: “As regards alternative in
vitro tests, it is difficult to draw conclusions on the
performance of the individual tests. The performance of the test
systems varies with the substances and the groups of products
tested and it is impossible to extrapolate the results of a
validation exercise to all types of substances and products.”
Id .

[81] The Report lists the following – though not
all financial – supporters of its project: the Consumer
Policy Service, the Galileo Data Bank, Invittox, the Fund for the
Replacement of Animals in Medical Experiments, SCAAT, CFTA, JCLA,
and COLIPA. Id . at 13-14.

[84]Id . at 17. See also Rodd,
supra note 13, at 150 (arguing that “it would be
desirable to have a legal requirement that all experiments should
obtain advice from a statistician (and follow it) so that numbers
of animals used in experiments are reduced to an absolute
minimum.”); ALTERNATIVES TO ANIMAL USE
IN RESEARCH, TESTING, AND EDUCATION , OTA-BA-273 7 (1986)
(stating that “even if animals cannot be replaced in certain
experiments, researchers can attempt to reduce the number used and
also to minimize pain and distress.”).

[85]Id . at 17. “The in vivo fixed
dose method proposed by the British Toxicology Society restricting
the number of test animals and reducing animal suffering was
accepted by the OECD ... after an international validation study
showed that it was scientifically valid for the values LD < 25
mg/kg, 25 to 200 mg/kg, 200 to 2000 mg/kg and > 2000 mg/kg. It
has been approved with the preliminary screening test[,] which
provides information on the dose to be applied in the main
study.” Id .

[86]Id . at 18. This test is apparently somewhat
akin to the LD-50 test mentioned in the previous section in that
“death is the main biological consequence.” It
requires, however, fewer animals. Id . See alsoALTERNATIVES TO ANIMAL USE IN RESEARCH,
TESTING, AND EDUCATION , supra note 84, at 8 (noting
that “[t]ests providing the same information [as the LD-50
test] have recently been developed using as few as 10 animals,
i.e., a 3- to 10-fold reduction.”

[87]Id . “OECD recommends using these
tests as a first stage in evaluating a sensitizing potential. If a
positive result is obtained in one of these tests, it is not
necessary to continue with in vivo tests.” Id
.

[88]Id . In these types of tests, which relate
generally to genetic mutation, the Report claims that “[u]se
of in vivo tests can be limited to certain cases, to verify
whether an activity observed in vitro is also expressed
in vivo .” Id .

[92]Id . at 19: “On the basis of partial
communication by the Member States under Articles 13 and 26 of
Directive 86/609/EEC on the number of animals used for experimental
purposes or other scientific purposes during 1991, no monkeys, cats
or dogs were used to test cosmetics, and the numbers of rodents and
rabbits used to test cosmetics and body hygiene products, compared
with the total number of animals of the same species used in
toxicity tests in the field of human, animal and environmental
protection, are: 248 to 25 994 in the Netherlands[,] 2 028 to 19
468 in Spain[,] 22 880 to 89 620 in France[, and] 3 082 to 171 530
in the United Kingdom.” Perhaps even more noticeable,
however, than the difference in numbers of animals used in cosmetic
versus health and environmental protection is the sheer amount of
animals used in toto in these countries. See, e.g. ,
Zak, supra note 6, at 73 (claiming that, in the United
States alone, “estimates of the number of animals used each
year in laboratories ... range from 17 million to 100 million:
200,000 dogs, 50,000 cats, 60,000 primates, 1.5 million guinea
pigs, hamsters, and rabbits, 200,000 wild animals, thousands of
farm animals and birds, and millions of rats and mice.”

[94]See Sherry, supra note 3, at 73.
See alsoMARY T. PHILLIPS AND JERI A.
SECHZER, ANIMAL RESEARCH AND ETHICAL CONFLICT: AN ANALYSIS OF THE
SCIENTIFIC LITERATURE : 1966-1986 18 (1989) (noting the post
World War II increase in animal use in science).

[97]See Regan, supra note 5, at 14. Regan
summarizes this “indirect duty view” with an example:
“[B]y kicking your dog your neighbor damages your property.
And since it is wrong to damage another person’s property,
your neighbor has done something wrong – to you, of course,
not to your dog.” Id . See alsoGARY L. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW
34 (1995) (explaining the historical basis for the
animal-as-property theory in part by noting that “[in] many
European languages, the word ‘cattle’ was synonymous
with the words ‘chattle’ and ‘capital’ and
that “[t]he Spanish word for property, ganaderia , is
virtually identical to the word for cattle, ganado .”)
This theory has led a great number of writers to compare the
current use of animals to slavery. See, e.g. , Ryder,
supra note 33, at 2 (noting that slavery in America was,
like animal testing today, considered “necessary for economic
survival” and that many white people believed black slaves
could not suffer or feel pain in the way that they could); Wright,
supra note 5 (submitting that one crucial difference between
slaves and animals fighting for their rights is that the former
could voice an opinion while the latter cannot – and that
this makes animal’s chance of success remote); Singer,
supra note 31, at 10-12 (claiming that speciesism is closely
akin to racism, sexism, and other methods that advocate allowing
the interests of one’s own group to take precedent over
other, equally valid interests); Hettinger, supra note 6, at
126 (arguing that “attempting to justify differential
treatment on the basis of species membership alone (as Cohen does)
is not just as morally objectionable as doing so on the
basis of race or sex, since members of different species are more
likely to require differential treatment than are members of
different races of sexes (within a species).”).

[103] Zak, supra note 6, at 31. See also
Sherry, supra note 3, at 77; Phillips and Sechzer,
supra note 94, at 24. One even more recent legislative act
– the Animal Enterprise Protection Act of 1992 – is
worth mentioning even though it protects laboratories rather than
the animals inside them. “This law,” Sherry explains,
“makes it a federal crime for anyone who crosses national or
state borders and/or uses the mails to cause a physical disruption
in the functioning of an animal enterprise. The terrorism provision
says that it is illegal to steal, damage, or cause the loss of
property, including animals and records, that causes economic
damage exceeding $10,000.” Id .

[106]See Report,supra note 19, at 13
(claiming that “[s]ince 1981 the CFTA (Cosmetics, Toiletry
and Fragrance Association) has supported the establishment of a
Centre for Alternatives to Animal Test (CAAT) at the John[s]
Hopkins University (USA).”).

[109]See 21 C.F.R. Sec. 312.23, “Drugs
for Human Use,” which refers more than once to the
FDA’s need to review the results of animal tests before it
will even consider approving a new drug for sale to human
consumers. See also Richard A. Merrill, FDA’s
Implementation of the Delaney Clause: Repudiation of Congressional
Choice or Reasoned Adaptation to Scientific Progress? , 5
YALE J. ON REG. 1, 88 (1988) (noting
that “[r]egulators ... consider the results of properly
conducted experiments in animals, primarily rodents, to be highly
relevant evidence of a substance’s capacity to cause cancer
in humans.”). While there may be no explicit animal-testing
requirement for cosmetics, there is a tacit one. See, e.g, Office
of Technological Assessment, ALTERNATIVES TO
ANIMAL USE IN RESEARCH, TESTING, AND EDUCATION ,
supra note 84, 160 (1986): “FDA has no statutory
authority to require testing of cosmetics for safety (other than
their color additives) before they are marketed. However, animal
testing is commonly undertaken to substantiate labeling claims and,
by regulation, FDA has stated that any cosmetic with an ingredient
that has not been substantiated for safety in its final product
form must bear a prominent label declaration that the safety of the
product has not been determined.”

[116] Cohen continues: “The upshot is that humans
are sometimes subjected to risks that animals could have borne, and
should have borne, in their place. To maximize the protection of
human subjects, I conclude, the wide and imaginative use of live
animal subjects should be encouraged rather than discouraged. This
enlargement in the use of animals is our obligation.”
Id .

[117]ALTERNATIVES TO ANIMAL USE
IN RESEARCH, TESTING, AND EDUCATION , OTA-BA-273,
supra note 84, at 7 (citing as one advantage in a list of
both problems with and benefits gained from animal testing
“savings in time, with the benefit of obtaining results more
quickly.”).

[118]See, e.g. , id. at 12, 13 (claiming
not only that while “[g]overnment regulatory practices can be
read as promoting animal testing, ... the laws and practices appear
flexible enough to accept alternatives when such tests become
scientifically acceptable” but also that “research
areas most likely to result in useful alternatives include computer
simulation of living systems; cell, tissue, and organ culture
technology; animal care and health; and mechanisms of pain and pain
perception.”) Finally, for U.S. Supreme Court support of this
hopeful vision, see generally Justice Douglas’s
dissent in Sierra Club v. Morton, 405 U.S. 727, 751 (1972)
(hoping that eventually “all of the forms of life ... will
stand before the court – the pileated woodpecker as well as
the coyote and bear, the lemmings as well as the trout in the
streams. Those inarticulate members of the ecological group cannot
speak. But ... people ... will be able to speak for the entire
ecological community.”).

[120]BERNARD E. ROLLIN, THE
UNHEEDED CRY: ANIMAL CONSCIOUSNESS, ANIMAL PAIN AND SCIENCE
168 (1989), provides the following observation, which both
identifies the chief motivating power in the American corporate
environment and suggests a way it can quite effectively be
harnessed to further the interests of animal rights: “In a
remarkable coup, [the outspoken animal advocate Henry] Spira ...
managed to extract from Revlon a ‘donation’ of $750,000
to fund the study of alternatives to the Draize eye-irritancy test
in rabbits, pointing out quite reasonably that cosmetics
manufacturers would be adversely affected by a campaign which
showed that they tortured rabbits to create their
products.”